We Need A New Law to Combat ‘Upskirting’ and ‘Downblousing’

Clare McGlynn is a Professor at Durham Law School and tweets at @McGlynnClare. Julia Downes is a Research Associate at Durham Law School and tweets at @juliahdownes.

Paul Appleby – an ‘upskirt pervert’ – was caught taking a photo up a woman’s skirt as she shopped in Poundland in December 2014. Despite over 9,000 similar images being found on his mobile phones, and a previous conviction for a ‘similar matter’, he could only be convicted of two counts of ‘outraging public decency’ and avoided a prison sentence. Unfortunately, Appleby is not alone in taking advantage of modern technology to collect intimate images of women taken in public and without their consent – commonly referred to as ‘upskirting’ and ‘downblousing’. Andrew Mackie took photos of women in bus stations, shopping centres and on trains; the barrister Simon Hamilton secretly filmed up the skirts of women in supermarkets; Guy Knight took photos up women’s skirts on trains during his regular commute to work.

And this is just the start. There are numerous dedicated ‘upskirt’ and ‘downblouse’ websites, each seeking new submissions of ‘unposed’ material. These sorts of images are also commonly marketed by the paparazzi. Women celebrities are regularly subjected to the lowered cameras of paparazzi when exiting cars; keen to capture ‘crotch shots’ to feature in the tabloids, gossip and porn websites. This is experienced as harassment, as Harry Potter actor Emma Watson has described following her 18th birthday: ‘I realised that overnight I’d become fair game. One photographer lay down on the floor to get a shot up my skirt. I woke up the next day and felt completely violated by it all.’

The harmful impact of ‘up-skirt’ tabloid photography has been raised by women’s organisations at the Leveson inquiry on the culture, practices and ethics of the press. Upskirting and downblousing are gross invasions of privacy and a form of street harassment that leaves women feeling vulnerable in public spaces, impacting on their quality of life, access to public space and feelings of security.

This phenomenon is alarming enough. But, compounding it is the reality that there are few, if any, criminal sanctions against these practices: a classic example of the law being notoriously slow to catch up on the rise in technology-facilitated sexual violence and harassment of women.

Beyond voyeurism

Isn’t this covered by laws against voyeurism? Unfortunately, not. The Sexual Offences Act 2003 created the offence of voyeurism specifically to deal with ‘Peeping Toms’ who hide themselves (or their cameras) and look directly into the private spaces of our homes, changing rooms and toilets. The focus was on shielding our private activities, prohibiting the recording, for sexual purposes, of ‘another person doing a private act’ in a building or other structure in which the person has an expectation of privacy.

Voyeurism had previously been regarded as a nuisance rather than a criminal activity, but it was recognised that not enough was being done to challenge this practice. There was recognition too that technology was making voyeurism easier, more difficult to detect and, importantly, the internet was facilitating the widespread distribution of the fruits of this practice. Voyeurism, while once trivialised, was now being recognised for the harm it was causing. But, the very specific drafting, and focus on privacy in a physical sense, has meant it covers only a limited range of activities.

So, what have other countries done?

Other countries have taken steps to introduce new criminal offences prohibiting upskirting. For example, in Victoria, Australia, after a series of public scandals the Summary Offences Amendment (Upskirting) Act 2007 specifically criminalised upskirting. Another Australian state recently extended its criminal law to cover downblousing as well as upskirting, with both recognising that the harm is the invasion of privacy, even though this is taking place in public spaces. In Massachusetts, the failure to convict Michael Robertson who was caught using his smartphone to film a woman sitting opposite him on a public bus, led to a swift legislative response. The case had been dismissed because public transport was not a place where a person had a ‘reasonable expectation of privacy’. The law was changed such that forms of sexual surveillance – upskirting – is recognised as an unlawful invasion of privacy.

A new criminal offence?

So do we need a new criminal offence in England & Wales? Police have been charging individuals with ‘outraging public decency’, but prosecutors and courts struggle to fit upskirting/dowblousing into this obscure offence. And, while the law has tried to keep up with technology-fuelled harassment and abuse of women, for example just last month criminalising so-called ‘revenge pornography’, no law clearly covers this activity.

A new law covering all forms of non-consensual distribution of private sexual images (referred to as ‘non-consensual pornography) is what is needed. Such a law, recommended by the End Revenge Porn campaign in the US, would cover the range of circumstances in which private sexual images are distributed without consent, including the well-known forms of revenge pornography, as well as upskirting/downblowing, voyeurism and dissemination following hacking.

Such a new law would help to ensure that the police and public are clear that these activities are harmful and unlawful and so that women (and men) can challenge those who perpetrate these harms. It would ensure protection of an individual’s sexual life and privacy, in the same way as we protect confidential information relating to health or personal finance. And, specifically in relation to upskirting and downblousing, a new law would ensure that we recognise that everyone is entitled to a reasonable expectation of privacy over their own bodies in public places like shopping centres, trains and buses, streets, parks and nightclubs, not just in the privacy of their own homes.

But we also need to recognise that adding another new offence to the statute book does not offer a long-term solution. Abuse and harassment, like viruses, are eminently capable of mutation and therefore finding new ways to perpetrate harm and evade legal accountability. Rather, it is our misogynistic culture that lies at the root of the problem. Lasting change, therefore, requires nothing less than a transformation of our culture.

It seems outrageous there is no way to criminalize this behaviour – especially as police wasted time & resources investigating a spate of this in Plymouth with multiple victims, including my daughter. No doubt if she had not been in shock and had managed to clip him round the ear, there would have been a handy ‘assault and battery’ law to charge her with!

[…] The law should also cover other forms of image-based sexual abuse, such as the distribution of hacked images, as when naked pictures of Jennifer Lawrence and other celebrities were stolen and distributed. Nor does “revenge porn” cover the sharing of images created without consent and then shared, including recordings of a sexual assault or upskirt images. […]

[…] The law should also cover other forms of image-based sexual abuse, such as the distribution of hacked images, as when naked pictures of Jennifer Lawrence and other celebrities were stolen and distributed. Nor does “revenge porn” cover the sharing of images created without consent and then shared, including recordings of a sexual assault or upskirt images. […]

[…] The law should also cover other forms of image-based sexual abuse, such as the distribution of hacked images, as when naked pictures of Jennifer Lawrence and other celebrities were stolen and distributed. Nor does “revenge porn” cover the sharing of images created without consent and then shared, including recordings of a sexual assault or upskirt images. […]

[…] let’s face it, how many police or victims have heard of it? There are laws on voyeurism, but they don’t fit either. They only cover images being taken of ‘private’ acts, such as being in a changing room […]